Legislation Course @ Moritz College of Law

What is Justice Stevens saying about how the legislative process impacts constitutional interpretation?

I am interested in student reaction to this telling sentence in Justice Stevens' opinion in the Baze, the lethal injection case decided earlier this week:

The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.

Welcome back ... to a new focal point for statutory interpretation

I hope everyone had a restful break because we are going to have a hard charging last few weeks of class focused on issues of statutory interpretation. 

Helpfully, the Supreme Court today decided to bring attention to an interesting (and complicated) statutory issue by granting cert in U.S. v. Hayes (07-608), to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence.  The Fourth Circuit decision under review in Hayes is available here.  The Fourth Circuit Hayes opinion covers a lot of issues we will be discussing in the weeks ahead, and anyone taking the time to read Hayes will have a running start on understanding the statutory interpretation concepts we will cover in the remainder of the semester.

Additional information and filings in Hyle v. Porter

After re-reading Hyle v. Porter, No. 2008-Ohio-542 (Ohio S. Ct. Feb. 20, 2008) (available here), for the fourth time, I still had lots of unanswered questions about the case.  Helpfully, the Ohio Supreme Court's website provides access at this link to a lot of the case documents (including all the briefs filed in the Ohio Supreme Court).

The ruling below coming from the First District in this case is available here, and it provides additional interesting background information.  I found this passage from that ruling especially noteworthy:

In the summer of 2005, Hyle had discovered that Porter's home of 14 years was within 983 feet of St. Jude Elementary School.  Hyle then sued under the rule, requesting that the court enjoin Porter from remaining in his home.

St. Jude is not visible from Porter's property.  And it is impossible to walk to the school in a straight line without averting obstacles, hurdling hedges, traversing trellises, or otherwise encroaching on neighbors' property.  Despite the fact that the meandering path to St. Jude would have required that Porter travel “over the river and through the woods,” the legislature and the court below decided that the 1,000 feet is measured as the crow flies.  Although Porter is not a crow and cannot fly, the trial court found that Porter was a registered sex offender whose back yard was within the 1,000-foot radius extending from St. Jude.  So Porter was evicted.

More on the Ohio SCt decision on sex offender statute

The case about the Ohio sex offender residency restriction statute that we discussed Wednesday in class is Hyle v. Porter, No. 2008-Ohio-542 (Ohio S. Ct. Feb. 20, 2008) (available here), and I now mean to make official that it is part of the required reading for Friday's class and beyond.   Also, in case you are interested, the full text of the statute at issue in Hyle v. Porter can be accessed here.

In addition, you can and should keep an eye on my SL&P blog coverage of the case, as well as media coverage.  In this early report from the Columbus Dispatch, for example, the headline is "High court says sex offender need not move."  Is that really what the Ohio Supreme Court "says" in Hyle v. Porter?

UPDATE:  I found interesting the different headlines in the various major Ohio newspaper reports about Hyle v. Porter.  Here they are:

• From the Cincinnati Enquirer, "Sex offenders going home"
• From the Cleveland Plain-Dealer, "Sex offender law not retroactive, Ohio Supreme Court rules"
• From the Columbus Dispatch, "Court: Not all sex offenders must move"

My statutory interpretation attack on acquitted conduct sentencing enhancements

As I mentioned briefly in class on Friday, I have been working on an amicus brief for the Sixth Circuit that questions federal sentencing enhancements on the basis of so-called "acquitted conduct."  Together with a terrific group of lawyers from a big New York firm working pro bono, last week we finished a short brief making a number of refined statutory arguments about reliance on acquitted conduct in the federal sentencing process.  The brief can be accessed at this link, and here is the heart of the statutory argument as explained in the brief's introduction:

[T]he directions that Congress set forth in the Sentencing Reform Act (SRA), and particularly the text of 18 U.S.C. § 3553(a), provide the ultimate instructions for sentencing decision-making by district and appellate courts.  Acquitted conduct enhancements in some cases — especially when they significantly affect the applicable Guideline range and the ultimate sentence imposed — may disserve the statutory purposes of sentencing that Congress enumerated in 18 U.S.C. § 3553(a) and sought to vindicate in the SRA.

Though one needs to know a lot about federal sentencing law and practice to understand the specifics and goals of this amicus brief, I hope interested students might read the brief to gain an appreciation of how practicing lawyers can construct statutory-based arguments.  Indeed, students who suggest lessons to be learned from the brief in the comments will earn Berman bonus points (and a free pass the first time I call on them and they are unprepared).

Intriguing SCOTUS ruling about politicial parties

This morning the Supreme Court issued a relatively short decision addressing election law and the First Amendment in New York State Board of Elections v. Torres (06-766).  The ruling, which can be accessed here, was unanimous although there were two little interesting concurring opinions. 

The decision is technically about the election process for state judges, but I think there are lots of lessons to be drawn from the case for our study of legislation.  Students who suggest some of those lessons through the comments will earn Berman bonus points (and a free pass the first time I call on them and they are unprepared).

Following up on CVRA statute and litigation

The Crime Victims' Rights Act, which is codified at  18 U.S.C. § 3771, is a fascinating and under-examined statute that I may end up coming back to repeatedly.  In the short term, for the next chapter in the litigation I was describing to you today, check out this new post, "Tenth Circuit rejects CVRA claim in shooting case," on my sentencing blog.

I would be very interested in any reactions/comments to the CVRA as a statute and to this litigation over its terms.  (And, of course, bonus points are awarded to anyone who can find and link a video that's relevant to the discussion.)